THE State V Sibikwaphi Ngwenya

### Preamble
1
HB 63-19
HC (CRB) 9/19
XREF MBER CR 22/11/17
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THE STATE

versus

SIBIKWAPHI NGWENYA

HIGH COURT OF ZIMBABWE

MABHIKWA J with Assessors Mr W T Matemba and Mrs L Sithole

GWERU CIRCUIT 4 FEBRUARY 2019

Criminal Trial

Ms N Chikuni for the state

Ms G T Nyabawa for the accused

MABHIKWA J:	The accused is a female adult.  She was 29 at the time of the commission of the offence.  She faces a charge of murder as defined in section 47 (1) of the Criminal Code, [Chapter 9:23].

The statement of agreed facts tendered into the record and marked as Exhibit 1 confirms that the accused resided in the Mitiyabo village under chief Mahlebadza in Mberengwa district.  The deceased Monias Ncube resided at his own home in Mahobo village under chief Bvukwe also in Mberengwa.  He was aged 49 at the time he met his death.

The deceased was the accused’s boyfriend.  On 13 November, 2017, at about 2100 hours, he arrived at the accused’s place coming from a beer drink.  The deceased was in a kitchen hut with other people.  The deceased called the accused outside the kitchen hut where he accused her of promiscuity.  An altercation ensued.  One Trymore Ncube (his brother) tried to intervene and refrain the deceased with no success until he succeeded after a long time.  Ncube left the accused’s place taking the deceased with him.

The accused later went to bed with her children and secured the door with a six (6) inch nail.  The deceased later returned to the home.  The accused refused to open for him.  The deceased then forced his way into the accused’s bedroom and started assaulting her with clenched fists several times on the face.  In retaliation, the accused picked up a hammer within the room and struck the deceased twice on the lower left chin and once on the forehead.  The deceased fell on the floor landing on the back of his head and died on the spot.

A pathologist, Dr Sangani Pesanai examined the deceased’s remains and his findings were recorded in post mortem report No. 1063-1062-17.  He observed that the cause of death was as follows:

a)	Subarachnoid hemorrhage

b)	Fractured skull

c)	Blunt force trauma on the head

d)	Assault

The post mortem report was admitted in evidence and marked “Exhibit 4.”  The statement of agreed facts also recorded that the accused accepts the evidence of the state witnesses as recorded in the outline of the state case as well as the contents of the post mortem.  The hard plastic hammer, with a yellow handle casing was also produced in evidence and was recorded “Exhibit 5.”

The accused denied the murder charge, in particular she denied the requisite intention to kill either in the form of dolus directus or dolus eventualis.  She however acknowledged that through her conduct aforesaid, she negligently caused the deceased’s death.

The state conceded that the accused was negligent in her actions and therefore accepted her plea of guilty to the lesser charge of culpable homicide.

From the evidence before us, the court is convinced that the accused indeed caused the deceased’s death.  However, it is clear that the deceased was the aggressor from the very onset.  After a beer drunk and instead of going to his family, he decided to go to the accused’s home where she stayed with children that she was minding.  Whilst there, the deceased then forced his way into the accused’s bedroom and physically abused her.

Itony Moyo, a grade 7 pupil at Matabo Primary school at the time, was one of the children that the accused was minding at the home.  He was present with his younger sister Sandile Moyo when the deceased came for the first time and also for the second time when he kicked the door open forcing his way into the bedroom to the extent that the children had to flee to the kitchen hut.  He did not physically see what went on after they had left but could hear the altercation from the kitchen hut.  Later, the accused joined them in the kitchen and told them that she had killed the deceased.  No evidence therefore has been adduced in this court to indicate that the accused possessed the requisite intention to kill, either actual or constructive.

Accordingly, the accused is found not guilty of murder but guilty of culpable homicide.

Sentence

In assessing sentence, the court will consider all that has been said in favour of the accused particularly that she is a female first offender with three minor children whom she had to leave behind in the care of other people at her arrest.   The eldest child is only 9 years old now and the youngest is 3 years old.

It has been argued in recent years that with the advent of equal rights and the fact that women are more and more becoming akin to commit crimes including such crimes as murder and robbery, perhaps the time has come to treat them equally with their male counterparts in sentencing. However, in the court’s view, imprisonment as a punishment still imparts more heavily on women offenders than their male counterparts.  It is not far-fetched to believe that a woman, married or unmarried, who is imprisoned leaving behind three minor children aged between 3 and 9 years old, feels the pain and impact of imprisonment more heavily than her male counterpart in the same position.  In casu, the accused was incarcerated when her children were 7 ½ years and 21 months old respectively.

In State v Malunga -1990 (1) ZLR 124 at page 129 B-E the court held the same view, and commented that noting S v Moyo HH 63-84.     The court comments as follows at page 129 B-E, of female offenders:

“In so far as punishment for female offenders is concerned it is true that there has been a noteable change in the role and status of women in contemporary society.  In addition there is some evidence that female criminality has increased in recent years.  (See Carney’s Introduction to Correctional Sentence 2 ed 189).  But it is not certain whether there is a correlation between these 2 facts and, in any event, this does not necessarily mean that any equality of the sexes requires equality of treatment in criminal cases.  The position is, as I see it, that the ‘practical reasons for treating the sexes differently in the matter of sentence’ referred to in R v Harvey 1967 RLR 203, still hold good to-day though with some qualifications (see Anne Jones & Ano v S HH-35-84).  These ‘practical reasons’ may be enumerated as—

(a)	offences involving dishonesty committed by men outnumber those committed by women.

(b)	the incidence of recidivism amongst  women is comparatively rare;

(c)	it often happens that the female offender has young children requiring care.”

In State v Pamela Homela –HB 214-15 a woman killed her husband after he had threatened to kill her with a knife she used the knife to stab him causing his demise.  She was sentenced to a wholly suspended term of imprisonment of 4 years.

The court will consider also the remorsefulness showed by the accused not only in court but on the night in question.  Though faced with a serious crime, she accused went by night to the area chief and reported herself.  Thereafter she is said to have co-operated with the police and authorities throughout.

The court will however not lose sight that the accused struck a very vulnerable part of the body and life was needlessly lost.

The state has however confirmed that the accused had already spent 15 months in prison at the time of conviction and sentence.

In the circumstances, the accused is sentenced to 4 years imprisonment, wholly suspended for 5 years on condition that she does not, within that period, commit any offence involving violence for which she is sentenced to imprisonment without the option of a fine.

National Prosecuting Authority, state’s legal practitioners

G T Nyabawa Legal Practitioners, accused’s legal practitioners